Jendreas v. Jendreas

• Court: Indiana Appellate Court
• Writing for the Court: STATON
• Citation: Jendreas v. Jendreas, 664 N.E.2d 367 (Ind. App. 1996)
• Decision Date: 16 April 1996
• Docket Number: No. 45A03-9501-CV-17,45A03-9501-CV-17
• Parties: In the Marriage of Kathy JENDREAS, Appellant-Respondent, v. James JENDREAS, Appellee-Petitioner.

Page 367

664 N.E.2d 367

In the Marriage of Kathy JENDREAS, Appellant-Respondent, v. James JENDREAS, Appellee-Petitioner.

No. 45A03-9501-CV-17.

Court of Appeals of Indiana.

April 16, 1996.

Transfer Denied July 31, 1996.

Appeal from the Superior Court of Lake County; The Honorable James Danikolas, Presiding Judge. Cause No. 45D03-9104-DR-1077.

Debra Lynch Dubovich, Levy & Dubovich, Highland, for Appellant.

James M. Kapitan, James A. Harris, Sachs & Hess, P.C., Hammond, for Appellee.

OPINION

STATON, Judge.

Kathy Jendreas ("Kathy") appeals from the trial court's judgment dissolving her marriage to James Jendreas ("James"). In her appeal, Kathy presents four issues for our review which we reorder and restate as follows:

I. Whether the trial court's refusal to hear additional evidence following the submission of a custody evaluation report denied Kathy due process of law.

II. Whether the trial court erred in its property disposition by excluding James' disability pension as a marital asset.

III. Whether the trial court erred in its property disposition by including a lump sum social security disability payment as a marital asset.

IV. Whether the trial court erred in failing to consider certain social security disability payments when calculating Kathy's monthly child support obligation.

We affirm in part, reverse in part, and remand.

The pertinent facts reveal that Kathy and James were married on September 16, 1967. Three children were born to the marriage: Kelly Jendreas, born March 19, 1969; Jeff Jendreas, born May 6, 1972; and J.J., born February 22, 1982. The parties separated on April 12, 1991 and James filed a petition for dissolution of marriage on April 19, 1991.

During the course of the marriage, James was employed as a union carpenter until health problems rendered him totally and permanently disabled. James was approved for social security disability benefits and the family received a lump sum award. In addition, James receives monthly disability benefits of $1,176.00, as well as a monthly union pension of $1,634.83. Kathy was not employed outside the home during the marriage, but has been employed since the parties separated.

During the course of the dissolution proceedings, a custody dispute arose regarding J.J. The parties agreed to have clinical psychologist Dr. Gary M. Durak ("Durak"), perform a custody evaluation. Durak interviewed James, Kathy, and J.J. several times and in the fall of 1993, Durak recommended that Kathy and James share custody under a joint parenting agreement with J.J. residing with each parent one month at a time. This recommendation was adopted by the parties and approved by the trial court.

A final dissolution hearing was held on August 9, 1994. During the hearing, James testified that he, J.J., and Kathy met with Durak on August 4, 1994, and that the parties agreed that James should have full custody of J.J. Kathy denied that she agreed to this arrangement. Because Durak was unavailable to testify, the trial court indicated that it would rule on all pending issues except the custody matter, and ordered Durak to submit a report. On September 14, 1994, Durak submitted a letter to the court wherein he recommended that J.J. reside with James on a full-time basis. On October 12, 1994, Durak filed a follow-up letter wherein he indicated that upon reconsideration, he recommended that J.J. "continue to alternate residencies between Mr. and Ms. Jendreas on a monthly basis. That is, the plan that has been in effect, since the Fall of 1993, continue." Record, p. 696. Kathy then filed a motion with the court to conduct a hearing for the purpose of cross-examining Durak which the trial court denied. ¹

On December 15, 1994, the trial court entered its findings of facts, conclusions of law, and decree of dissolution. The trial court, inter alia, awarded James the care and custody of J.J. and Kathy was granted visitation rights in accordance with the visitation guidelines adopted by the Lake County Rules. The trial court also found that James was entitled to receive and use his disability check, and authorized him to use it for J.J.'s benefit. The court ordered Kathy to pay $30.00 per week in child support. The court then divided the rest of the marital property equally and expressly declined to deviate from the presumption that equal division of the property was just and reasonable. Kathy appeals this judgment.

I. Child Custody and Due Process

Kathy contends that the trial court's custody determination violated her fundamental right to due process as a result of its refusal to conduct a hearing for the purpose of cross-examining Durak.

With respect to custody determinations, we presume the trial court reached the correct result, and we review its decision only for an abuse of discretion. This means we will disturb the trial court's order only if it is clearly against the logic and effect of the facts and circumstances before the trial court. In re Marriage of Saunders, 496 N.E.2d 419, 421 (Ind.Ct.App.1986).

Kathy contends that she was entitled to cross-examine Durak regarding the reports he filed with the court subsequent to the August 9, 1995 hearing as required by IND.CODE § 31-1-11.5-22 (Supp.1995). IC 31-1-11.5-22 provides, in pertinent part:

(a) In custody proceedings after evidence is submitted upon the petition, if a parent, or the child's custodian so requests, the court may order an investigation and report concerning custodial arrangements for the child....

(b) ... If the requirements of subsection (c) are fulfilled, the investigator's report may be received in evidence at the hearing, ...

(c) The court shall mail the investigator's report to counsel and to any party not represented by counsel at least ten (10) days prior to the hearing.... Any party to the proceeding may call the investigator and any person whom he has consulted for cross-examination. No party may waive his right of cross-examination prior to the hearing.

Procedural due process must be provided to protect the substantive rights of the parties in child custody proceedings, and an opportunity to be heard is essential before a parent can be deprived of custody. Van Etta v. Van Etta, 583 N.E.2d 767, 768 (Ind.Ct.App.1991). Even where the technical requirements of the IC 31-1-11.5-22 are not met, when reports are considered by the trial court in making its determination, the parties should have the opportunity to examine their veracity and the probity of their conclusions. Id. (citing In re Marriage of Larkin, 462 N.E.2d 1338, 1342 (Ind.Ct.App.1984)). Once the court decides to order a study to aid in the custody determination, the court is obligated by due process to hold a further hearing. Id.

In Van Etta, the father filed a petition to modify custody and after a hearing, the court sua sponte ordered a home study by the county welfare department. Van Etta, supra, at 768. The report was filed with the court and without another hearing, the court granted custody to the father. Mother appealed, arguing that the trial court erred in considering the home study report without a hearing. Id. This court reversed, noting that even though the court ordered the report sua sponte and the technical requirements of IC 31-1-11.5-22 were not met, it could not tell to what extent the court based its judgment on the unchallenged report, making a hearing essential in order to protect the mother's due process rights. Id.

Similarly, although the technical requirements of IC 31-1-11.5-22 are not met here, its legislative intent remains clear; parties should have the opportunity to examine into the veracity and the support for any conclusions reached in investigative reports. Larkin, supra, at 1342. Here, Durak submitted two reports subsequent to the hearing which made different recommendations regarding the custody of J.J. The court then awarded James custody. In its findings, the trial court relied upon the September 14, 1994 letter, noting that Durak recommended J.J. live with his father on a full-time basis and that Durak "has established a pattern of consistently moving closer to the position of Mr. Jendreas on the custody issue." Record, p. 302. Yet, by denying Kathy's request for a hearing, the trial court precluded her from examining the veracity and probity of Durak's recommendations which the trial court expressly relied upon in reaching its conclusion. Due process requires otherwise. Van Etta, supra; Larkin, supra. Accordingly, we determine that a hearing subsequent to the submission of Durak's reports was essential to protect Kathy's due process rights and remand for further proceedings.

II. Property Disposition--Disability Pension

Kathy contends that the trial court erred by failing to consider James' union disability pension a marital asset subject to property distribution. In reviewing a trial court's division of property, we consider only the evidence favorable to the judgment, and will reverse only upon a showing of an abuse of discretion. Fields v. Fields, 625 N.E.2d 1266, 1267 (Ind.Ct.App.1993), trans. denied. The party challenging the trial court's division must overcome a strong presumption that the court complied with controlling statute. Castaneda v. Castaneda, 615 N.E.2d 467, 471 (Ind.Ct.App.1993).

Kathy argues that James' disability pension is marital property subject to equitable distribution. IND.CODE § 31-1-11.5-2(d) (1993) states that "property" subject to distribution in dissolution proceedings means all the assets of either party or both parties including a present right to withdraw pension or retirement benefits; or the right to receive pension or retirement benefits that are not forfeited upon termination of employment, or that are vested.

Kathy relies upon Gnerlich v. Gnerlich, 538 N.E.2d 285 (Ind.Ct.App.1989), trans. denied, to support her contention. In Gnerlich, this court determined that a disability pension was marital property subject to distribution because it was...